Truth in Justice Files is the editorial adjunct to Truth in Justice, the organization and website founded to educate the public about the criminal conviction of wholly innocent people. The website is at www.truthinjustice.org.

Monday, June 25, 2007

Guest Shot: Adam Liptak on Prosecutorial Misconduct

The misconduct that cost the prosecutor in the Duke lacrosse case his career certainly seemed to call for a severe penalty: he withheld evidence from the defense, misled the court and inflamed the public.

Yet other prosecutors found by the courts to have done similar things have almost never lost their jobs or their licenses to practice law. Even in the aftermath of prosecutorial wrongdoing that helped put innocent men on death row, discipline has been light or nonexistent.

What makes Michael B. Nifong different?

The answer, it appears, is that he got a taste of something like his own medicine, a trial in the court of public opinion.

“The very same facts that made this case attractive to a prosecutor up for election and a huge publicity magnet — race, sex, class, lacrosse stars, a prominent university — also led to his undoing when the case collapsed and his conduct was scrutinized in and beyond North Carolina,” said Stephen M. Gillers, a law professor at New York University and the author of “Regulation of Lawyers: Problems of Law and Ethics.”

“If the same case had involved three poor men, instead of defendants with private counsel and families that supported them financially and publicly,” Mr. Gillers continued, “we would not likely see a disbarment, in North Carolina or anywhere. I’d be surprised if there were even serious discipline.”

There is widespread agreement that sanctions for prosecutorial misconduct are quite unusual, but heated dispute about why.

Prosecutors say they seldom face discipline because conduct like Mr. Nifong’s in this sexual-assault case is exceptional.

“Nifong’s case is rarer than human rabies, which is one reason it is such huge news,” said Joshua Marquis, the district attorney in Clatsop County, Ore., and a vice president of the National District Attorneys Association. “The defense bar is piling on and trying to claim this is typical behavior.”

But the defense bar is not alone. Law professors who study professional discipline of prosecutors have also noted that misconduct like Mr. Nifong’s is often unpunished.

“A prosecutor’s violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by the courts, and almost never by disciplinary bodies,” Bennett L. Gershman wrote in his treatise, “Prosecutorial Misconduct.”

Mr. Gershman, a former prosecutor in Manhattan who teaches law at Pace University, said the Nifong case was handled differently because of the publicity. “The fact that it resulted in national exposure,” he said, “had to have put the disciplinary body and the entire system of justice under the spotlight.”

“You have rogue prosecutors all over the country who have engaged in far, far more egregious misconduct, and in a pattern of cases,” he added. “And nothing happens.”

The Chicago Tribune, for instance, analyzed 381 murder cases in which the defendant received a new trial because of prosecutorial misconduct. None of the prosecutors were convicted of a crime or disbarred.

There have been about 120 death-row exonerations since the Supreme Court reinstituted the death penalty in 1976, said Samuel R. Gross, a law professor at the University of Michigan. (Prosecutors say the number is much smaller.)

“I don’t know of a single case of discipline against a prosecutor who engaged in misconduct that produced the wrongful conviction and death sentence, and many of the cases involve serious misconduct,” Mr. Gross said.

Indeed, the North Carolina disciplinary commission that disbarred Mr. Nifong faced criticism for its handling of two recent cases involving charges of misconduct in death-penalty cases.

In one, Alan Gell was sentenced to death after prosecutors withheld witness statements from the defense. The witnesses said they had seen the victim alive after Mr. Gell had been jailed on other charges and was physically unable to have committed the murder. Mr. Gell was acquitted at a retrial.

Two prosecutors received a reprimand.

Last year, the commission dismissed charges, largely on statute of limitations grounds, against two prosecutors accused of withholding evidence in the 1996 capital trial of Jonathan Gregory Hoffman. Mr. Hoffman has been granted a retrial.

The chairman of the disciplinary commission, F. Lane Williamson, discussed those cases as he ordered Mr. Nifong’s disbarment last Saturday. “In those two cases, the situation was very different, although you could look at it and say the harm that was caused by the conduct was greater,” Mr. Williamson said. “In both of those cases someone was actually wrongfully convicted of a capital crime.”

But the earlier cases differed from the case against Mr. Nifong, Mr. Williamson said, because neither one involved allegations of intentional wrongdoing.That point is important, prosecutors say. What courts label prosecutorial misconduct is often the product of carelessness or oversight rather than an intent to pervert the justice system by convicting the innocent.

“It is very hard to get discipline against a prosecutor to stick,” said Rory Little, who teaches at the Hastings College of the Law in San Francisco and serves on an American Bar Association task force on prosecutorial ethics. “The main reason is that it’s just too mushy to decide intent.”

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Truth in Justice Files is the editorial adjunct to Truth in Justice, the organization and website founded to educate the public about the criminal conviction of wholly innocent people. Members of the Board of Directors are Sheila Berry, Doug Berry, Ira Robins, Martin Yant, and Dennis Fritz